Opinion
No. 03–09–00078–CR.
2011-02-2
The STATE of Texas, Appellant v. Suzanne WOLFE, Appellee.
Lisa Delong, Austin, TX, for Appellee. Giselle Horton, Assistant County Attorney, Austin, TX, for Appellant.
Affirmed.
Lisa Delong, Austin, TX, for Appellee. Giselle Horton, Assistant County Attorney, Austin, TX, for Appellant.
Before Justices PATTERSON, PURYEAR and HENSON.
OPINION
DIANE M. HENSON, Justice.
In this prosecution for driving while intoxicated (DWI), the State appeals from the trial court's order reconsidering and granting appellee Suzanne Wolfe's motion to suppress evidence. See Tex. Penal Code Ann. § 49.04 (West 2003). In a single issue on appeal, the State argues that the trial court erred in reconsidering the motion and granting suppression relief. We affirm the order of the trial court.
In any event, there is no indication in the record that the State ever presented its lack-of-notice complaint to the trial court by a timely request, objection, or motion, either at the trial setting or after the trial court's order was issued. Instead, the State raises its notice argument for the first time on appeal. By failing to present this issue to the trial court, the State has waived its complaint. See Tex.R.App. P. 33.1(a) (complaint must be made to trial court by timely request, objection, or motion in order to preserve complaint for appellate review); see also Pena v. State, 285 S.W.3d 459, 464 (Tex.Crim.App.2009) (explaining that party must present complaint to trial court in order to preserve error because “[t]his gives the trial judge and the opposing party the opportunity to correct the error”); Texas v. Mercado, 972 S.W.2d 75, 78 (Tex.Crim.App.1998) (“Ordinary notions of procedural default should apply equally to the defendant and the State.”). Similarly, the State argues for the first time on appeal that the trial court erred in granting the motion to suppress without conducting a second evidentiary hearing. Like the notice argument, this argument was never presented to the trial court and is therefore waived. See Tex.R.App. P. 33.1(a). Furthermore, it is unclear what the trial court may have heard or reviewed in reconsidering the suppression issue, as there is no record of the proceeding and the State did not request findings of fact and conclusions of law. Even if it would be error for a trial court to reconsider a motion to suppress without hearing additional evidence, there is simply nothing in the record before us to indicate that the trial court did so in this case. In the alternative, the State argues that in the absence of a second evidentiary hearing, the trial court should have given “almost total deference” to the implied fact findings of the visiting judge. Again, because there is no record and no findings of fact or conclusions of law, we do not know whether or not the trial court deferred to the implied fact findings of the visiting judge. It is altogether possible that the trial court deferred to such findings, but nevertheless determined that the original suppression ruling was based on an erroneous conclusion of law, as Wolfe argued in her brief in support of the motion to suppress. Second, the trial court was not acting as an appellate court, reviewing the original suppression ruling under the hybrid standard of review applied by appellate courts to trial court rulings on motions to suppress. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). Rather, the trial court in this case was simply exercising its discretion to reconsider a prior interlocutory ruling. The appellate standard of review is inapplicable. Finally, this issue was raised for the first time on appeal and therefore has not been properly preserved for appellate review. See Tex.R.App. P. 33.1(a). We overrule the State's issue on appeal and affirm the order of the trial court. CONCLUSION We affirm the trial court's order.
-------- Notes:
Had the State made such a request, the trial court would have been obligated to make findings of fact and conclusions of law. See State v. Cullen, 195 S.W.3d 696, 699 (Tex.Crim.App.2006) (“[U]pon the request of the losing party on a motion to suppress evidence, the trial court shall state its essential findings.”).